N.J. Constitutional Convention: Vol. 4, Page 243

Thursday, July 3, 1947 (Afternoon session)

so because equity is essentially a court of conscience, and the decisions of that court are rooted in conscience, and the conscience of the litigant is fully explored before the decision is reached. It has been said in our United States Supreme Court by Mr. Justice Cardozo that when rights are strong enough, equity will find a way though many a formula of inaction may bar the path.

It has been urged upon this Committee, and I have heard the argument advanced many times in the past, that the lawful rights and expectations of litigants are often delayed or defeated by this clash between the jurisdiction of the Court of Chancery and that of the court of law. It is my considered opinion that if this is so the blame can invariably be placed at the hands of the attorney for the litigants. A relief which is sought in equity is separate and distinct from that which is sought in law. I don't think one would go to a hardware store to buy a suit of clothes, or vice versa.

Let's review the particular approach to a case as it comes to the lawyer. The lawyer is given the facts, so he knows at first hand what the facts are. He's apprised of everything that's in the pleading. He knows at once whether or not there are mixed questions of law and equity involved. It's incumbent upon the lawyer at that time to give consideration to the pattern of pleadings - to which so many lawyers limit themselves at that stage of the case - to its ultimate conclusion. And he can then determine whether there are questions of law and equity involved.

Now, the Legislature has power, and it has exercised this power, to prevent a miscarriage of justice where there is a clash of jurisdiction. I don't know if this has been referred to before, but I haven't heard it mentioned. We have on our statute books an act known as the Transfer of Causes Law. It is there provided - and this is an act of the Legislature and recourse has been had to it and the courts sustained its operation - that no cause or matter pending in the Court of Chancery, Supreme Court, or Circuit Court, or Court of Common Pleas, the District Court, Court of Oyer and Terminer, Court of Quarter Sessions, or Court of Special Sessions, and that includes them all, shall be dismissed solely on the ground that such court is without jurisdiction over the subject matter, either in the original suit or on appeal; but the cause or matter shall be transferred, with the record thereof and all papers filed in the cause, to the proper court for hearing and determination The court to which the suit or matter is transferred shall thereupon proceed therein as if the same had been originally commenced therein.

As that act has been interpreted by the courts, it is applicable in those cases where the court has no jurisdiction of the whole case. In other words, if you go into equity and you have a purely

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